Open Records Decision No. 453
December 31, 1986
Re: Whether the identities of persons who received bid packets on a sale of land
is subject to disclosure under the Open Records Act, article 6252-17a, V.T.C.S., where
the sale is not completed
Honorable Gary Mauro
Commissioner
General Land Office
1700 North Congress Avenue
Austin, Texas 78701
Dear Mr. Mauro:
Section 3(a)(4) of the Open Records Act, article 6252-17a, V.T.C.S., excepts
from required public disclosure "information which, if released, would give advantage to
competitors or bidders." You have asked whether this section authorizes the General
Land Office to withhold the identities of "those who received bid packets for the recent
offer by this office to two tracts of land controlled by the Texas Board of Corrections."
Your argument is as follows:
The tracts were to be sold by competitive bidding. However,
no qualified bids were received and the land will be offered again in
the near future. Because the land has yet to be awarded, it is my
contention that the list of potential purchasers must remain
confidential in order to maintain the integrity of the competitive
bidding process and insure that no bidder is given an unfair
advantage.
Those who received bid packets may bid again at the next
offering. Disclosing their identities now is likely to put them at a
disadvantage because knowledge of who has shown interest in
acquiring a parcel of land can affect its perceived value.
. . . .
Disclosure of the names of potential purchasers can sway
competitive bidding especially for real estate, whether it be a
mineral estate or a tract destined for commercial development. The
fact that a certain individual or company is contemplating
development of the land could intimate to others that the area has a
particular speculative value and encourage them to submit or revise
a bid. Thus, simply because his interest in the land has become
public a potential purchaser may be put at a disadvantage as
opposed to another bidder.
Similarly, knowledge of the potential purchaser's identity could
provide a competitor with clues suggesting certain facts about the
land affecting its prospects and value. The individual whose
identity had been revealed could then lose any edge he previously
enjoyed as a result of details that only he had been keen enough to
discern.
You contend that Attorney General Opinion MW-591 (1982) is on point. That
opinion held that the General Land Office may withhold "the identities of those who
nominate tracts to be leased by the School Land Board at mineral lease sales." It noted
that the class of potential nominators could be divided into two subclasses: those who
may (and likely will) themselves bid for the mineral rights to the tract which they
nominate, i.e., private individuals and companies, and those who will not do so, i.e., the
School Land Board and the General Land Office. It then said:
This office has previously recognized that 'information concerning
the identity of those who have submitted bids (before the last day of
bidding), would be of advantage to other competitors or
bidders. . . .' Open Records Decision No. 46 (1974). See Open
Records Decision No. 170 (1977). The policy reason for
withholding the identities of bidders is obvious. Merely knowing
the identities of other bidders could furnish a bidder with insights
concerning the others' competitive capabilities which he may then
use in structuring his own bid. Thus, if, when the Land Office
receives a request for the identity of a nominator, that nominator has
already bid on the tract which he nominated, his identity may be
withheld under Open Records Decision No. 46. He would then be a
'bidder' and disclosure of his identity could harm him, particularly
since the identities of other bidders for the same mineral rights for
which he bid may be withheld. Furthermore, even if a nominator
has not yet bid when his identity is requested, we conclude that his
identity may be withheld. We understand that individuals and
companies which nominate tracts for lease usually bid for the
mineral rights to those tracts. Thus, even if a nominator has not yet
bid on the tract which he nominated, he will likely do so in the
future. Therefore, because the likelihood that he will bid is
substantial and because by the time he does bid it will be too late to
preserve his identity, the identity of a nominator must be protected
even before he bids. (Emphasis in original).
We believe that Attorney General Opinion MW-591 must be limited to its facts.
The basis for its conclusion that the General Land Office may withhold the identities of
people who nominate tracts to be leased by the School Land Board even if they have not
yet bid for the mineral rights to those tracts was that past practice establishes that these
nominators will almost certainly bid for these rights. The information submitted to this
office in connection with this request, in other words, demonstrated a "substantial
likelihood" that those who nominate these tracts will be among the class of bidders for
their mineral rights. Here, by contrast, it has not been shown that there is a substantial
likelihood that people who received bid packets for the prior land sale will bid for the
tracts when they are reoffered for sale. The most that has been asserted is that these
bidders "may" submit new bids at the next sale.
This office has construed section 3(a)(4) narrowly, requiring a showing of actual
or potential harm in a particular competitive situation. See, e.g., Open Records Decision
Nos. 331, 309 (1982); 222 (1979). We do not believe the requisite showing has been
made here. On the contrary, we believe that this matter comes closer to being controlled
by Open Records Decision No. 46 (1974). There, this office held that the State Board of
Control could not withhold a list of 180 companies which had expressed an interest in
being informed of purchases of certain items to be made in the future and any
advertisements soliciting bids for those items but had not actually bid for them. The
decision concluded that
we are unable to find that knowledge of the identity of the numerous
potential bidders for the requested commodity class is information
which, if released, would give advantage to competitors or bidders.
At best, the matter at hand involves mere "potential bidders" of the type referred to in
Open Records Decision No. 46.
The Open Records Act states that its provisions are to be "liberally construed in
favor of the granting of any request for information." Sec. 14(d). This directive, as well
as the reasons we have discussed, compels us to conclude that section 3(a)(4) is
inapplicable in this instance.
Very truly yours,
Jim Mattox
Attorney General of Texas
Jack Hightower
First Assistant Attorney General
Mary Keller
Executive Assistant Attorney General
Rick Gilpin
Chairman, Opinion Committee
Prepared by Jon Bible
Assistant Attorney General